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Wal-Mart, For The Defense

Gillian Hadfield, lawprof at the University of Southern California who’s visiting Hahvahd at the moment, offers this controversial proposition in an op-ed at the Washington Post. The basic premise is that we, lawyers, have priced legal services out of reach of ordinary folk, while holding onto our monopoly for dear life.

The United States stands largely alone in advanced-market democracies in drastically restricting where and how people can get help with their legal problems. In all states, under rules created by bar associations and state supreme courts, only people with law degrees and who are admitted to the state bar can provide legal advice and services of any kind.

In England, Australia and the Netherlands, by contrast, a wide variety of professionals and experts can provide legal assistance.

Nonprofit organizations as well as for-profit firms can develop specialized expertise in particular areas of legal need — housing, immigration, debt-management, child custody and so on. Often, studies show, specialized non-lawyer providers ultimately offer better service than the solo and small-firm practitioners who do someone’s taxes one day and provide criminal defense the next.

No need to point out all the problems. We know what they are. Studies fail to address those who are ruined when their $2,99 form from LegalZoom doesn’t do the trick. But it still fails to provide anything remotely resembling a solution to the problem, that normal people cannot afford legal representation and advice.

My research suggests that Americans have a much higher rate of simply giving up in the face of legal difficulties, with effectively nowhere to turn if they cannot afford a lawyer who comes at a minimum price of $150 an hour. This means giving up on seeing their children or saving their homes or credit ratings or jobs. Unlike people in Britain, those facing legal problems in the United States can’t turn to local volunteer organizations, their unions or consumer organizations. They can’t buy what they need from entrepreneurs or the full-service stores like Wal-Mart that now package low-cost eye exams, insurance, banking and more with their diapers and detergents.

This may explain why in U.S. surveys 30 to 40 percent of Americans with an identifiable legal problem say they do nothing to resolve it, compared with just 5 percent in Britain. Yes, Britain spends far more public funds on ensuring access to justice — $76 in legal aid per capita compared with $13 in the States (including charitable contributions). But the critical difference is the widespread and diverse availability of help in Britain and other advanced-market democracies for people with legal troubles — not just criminal arrest but issues such as foreclosure, divorce, child custody, employment and bankruptcy. The United States urgently needs to expand capacity for non-lawyers to meet the legal needs of ordinary Americans in innovative and less costly ways.

Hadfield is absolutely correct that we’ve done little to nothing to advance the cause of providing affordable legal services in this country. This is a discussion that is way overdue, and the controversy created here is a welcome invitation to sort things out.

Much of what she argues is obviously silly and counterproductive. Hey, what do you expect from an academic. But read the comments to her op-ed and see the seething hatred that the public has for lawyers. We can talk amongst ourselves and rationalize why the delivery of legal services in this country can’t be improved, but the public isn’t buying.

True, the public isn’t exactly on target with much of its criticism. They complain bitterly, but simultaneously want the law to remedy every harm, real or perceived, immediately and at no cost to them. As crazy as the law seems when it’s some other guy complaining, every individual believes that their grievance is worthy and deserving of a few mil, their damage worse than anyone else’s, their harm the most egregious ever suffered. Ridiculous and hypocritical, but then, they aren’t supposed to understand. That’s why there are lawyers.

Maybe legal services from your local Wal-Mart is the right idea. Maybe it’s got the seeds of the right idea. Maybe Wal-Mart, via economy of scale or some of its other tricks, can allow lawyers to provide quality legal services at a significantly lower cost to consumers. I’m not saying it can, but I am saying it’s time to start thinking seriously about such notions that are immediately written off as “absurd” by the bar, especially the formal groups who love to spout platitudes but never hold the hand of a client whose life has been ruined by the beloved system, “not perfect but the best ever created.” We’ve got a platitude that forgives us every failure. Spouting platitudes doesn’t do much to help clients.

Much of what Hadfield says seems silly, naive, wrong-headed or just poorly conceived. She solves one problem at the expense of another. But what she does do is give us a good reason to talk about ways that the legal profession can do better to serve the needs of human beings. And if that’s all she does, it’s good enough for me. This is a discussion that needs to be had, before the local townspeople march on our law offices with torches and pitchforks. Before more lives are ruined by the law.

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11 comments on “Wal-Mart, For The Defense”

Personally, I don’t think the problem is “lawyers” at all. I think the problem is the gross injustice of the system to individual litigants, as opposed to institutional litigants like the government, insurance companies, banks, big corporations and the like.

The unfortunate lawyers who have to interface with the hoi polloi on an individual basis are just closer to the party who routinely gets screwed over, and the natural human tendency is to blame someone identifiable and closer.

But the culprit in the injustice meted out to the individual is not his lawyer, but the judge and the system that favors the establishment litigants so heavily that lone individuals, and even their lawyers, are basically treated with contempt.

Just look at summary judgment. It’s arguably prohibited by the 7th amendment, but that doesn’t seem to matter – because the beneficiaries of summary judgment, 99.9% of the time, are institutional litigants who are defendants in civil cases, who should not have to “suffer” enduring the risk of loss through a trial.

But put the shoe on the other foot, where the individual is a defendant against an institutional litigant – which is what every criminal case is – and summary judgment doesn’t exist. Nobody frets about the criminal defendant suffering the risks at his trial; the trial is his “due process”, after all.

And that doesn’t even get into the countless ways a judge can skew his interpretation of evidence to favor the government or the insurance company, where the exact same evidence that would be “garbage” and “self-serving” if it was offered by a personal injury plaintiff is “compelling” and “convincing” when offered by the government in a criminal case.

To take just one example, if a personal injury plaintiff used any witness that was the equivalent of a “jail-house snitch” routinely used by the government, especially in their weak criminal cases, the personal injury plaintiff would be laughed out of court and his attorney disciplined.

People understandably expect the rules to be applied even-handedly, and when they aren’t they blame their lawyer, because its easier to believe that their lawyer was bad than that the system is bad.

You know what I tell clients at the outset? That the ONLY reliable “rule of law” is this: the government wins, the bank wins, the insurance company wins, the big firm wins.

Then I have to somehow explain why they should hire me. This has become increasingly difficult in recent years. Frankly, I’m not sure they should.

From the perspective of a non-lawyer, the problems have much to do with a legislative branch that has never ceased cranking out additional laws without ever retiring or repealing the zillions of bad, confusing, oppressive, unread, unconstitutional rules that have bloated the US legal code to the size of its own planet. Any solutions must deal with the toxicity of the legislatures (not to mention the public they pander to).

This signifies that the legal service is “off the shelf” and available at steep discounts.

I presume for an attorney to market his wares at Walmart, he’ll have to have malpractice insurance. So, his practice becomes one where he has to defend his malpractice insurance. This means such an attorney will shortchange his clientele at every turn and this means stipping out every case.

While there are numerous areas of practice where stipping is expected – such as landlord/tenant law, small claims – there are areas that require litigation – child custody and equitable distribution and community property.

These attorneys know that their malpractice policy can become a res in the case by the mere statement by the judge that the lawyer “malpracticed” his client. Malpractice can be deemed by arriving late in court, not filing opposition to a motion and so on. Malpractice insurers are quick to settle claims and the attorney loses the ability to offer his wares at Walmart because his malpractice coverage will no longer be available after a malpractice incident.

Despite the fact that you’re a backlinker, I’ve allowed your comment to go through (without backlink, of course) since you put so much work into it.

Your comment reflects the obvious concern, that the Wal-Mart lawyer would provide low rent representation. It’s a real concern, but it’s unhelpful to dismiss the idea out of hand because ot it. Wal-Mart also sells Sony big screen plasma TVs for a fraction of what they cost in a boutique. If we’re going to try and find a solution, we need to put every idea on the table. Most won’t work, but closing our minds to possibilities won’t help us either.

Why do you say her suggestion is “obviously silly and counterproductive”? After all, as she notes, allowing a wider range of persons and organizations to give legal advice works in most other countries, including England, Australia and the Netherlands.

I’m being facetious, reflecting the typical lawyer reactions to proposals like Gillian’s. Any lawyer can tell you a dozen reasons why this is a terrible idea and won’t work. That’s what it refers to. This is really a post for lawyers rather than laymen who don’t see problems that are otherwise obvious. My point is that regardless of all the obvious problems (and they are very obvious), we still need to think outside the box and start looking for solutions rather than merely pointing out problems with every solution.

Actually, better malpractice coverage is one reason to allow corporations–profit or non-profit–to provide legal services. If Walmart was the provider–the employer of the attorneys (or others) providing legal help–then Walmart would be responsible for the quality and the one to be sued for bad advice. That’s better than suing the no-pocket solo practitioner, in my view.

I fail to see why the law has to be so complicated that it takes a lawyer to understand its full implications. Your characterization of the alternative as “dumbing down the law” is unconvincing. Laws don’t need to be written in jargon, or using words that don’t mean what they plainly say (example: “malice” in libel law). Legislators write them that way because they’re lawyers, and want to create work for themselves and their friends.

Would you let a doctor tell you that all drugs, even aspirin, ought to be labeled only in Latin and dispensed only by MDs, because you and I are too ignorant to be trusted to treat ourselves for even a headache?

Scott H. Greenfield

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